I write in regards to an article by Professor Erwin Chemerinsky which appeared in the Daily Journal on September 14, 2021 entitled, “The dangerous implications of Texas’s new abortion law.” Prof Chemerinsky begins by stating what has been missing from the discussion of the Texas law prohibiting abortions is why it was structured to allow only civil actions for enforcement and what makes it so insidious for other constitutional rights. Prof Chemerinsky correctly claims that the Texas law prohibits abortions once a fetal heartbeat can be detected which in effect bans 85 to 90 percent of abortions in the state and authorizes enforcement by civil suits for money damages against those who perform or aid or abet abortions.
Prof Chemerinsky states that the law was structured this way so that no one could sue and have the law declared unconstitutional and enjoined. This would include the US Supreme Court.
The US Supreme Court has held that the 11th Amendment to the Constitution and the principle of sovereign immunity precludes suits against state governments even when they violate the constitution whether it is a suit for money or for injunctive relief or just to have a law declared unconstitutional Nor does it matter whether the suit is in state or federal court unless the state consents to be sued. In general state governments are immune from being named as a defendant in litigation. The article goes on to say this of course created a problem for enforcing the Constitution and holding the state accountable. Prof.Chemerinsky acknowledges that in 1908 the Supreme Court, in the case of Ex parte Young, approved a way around this situation. This case provides that state government officials can be sued for an injunction to stop the enforcement of an unconstitutional law even when the state government itself cannot be sued. Prof. Chemerinsky describes this euphemistically as a legal fiction rather than a clear rewriting of the constitution. The case involved a constitutional challenge to a Minnesota law limiting railroad rates. The court said that the Attorney General of Minnesota could be stripped of his official capacity and that he could be sued for an injunction to keep him from enforcing this law. This is clearly contrary to the actual text of the 11the Amendment but is cited with approval by the professor.
Hence, a person who wants to bring a lawsuit challenging the validity of a state law does so by suing the state official responsible for enforcing it. Texas is accused of doing much the same as the Supreme Court did in the Young case except that Texas followed the law and the Supreme Court violated the law ( Amendment 11).
Prof. Chemerinsky continues that in 2001, the Fifth US Circuit Court of Appeals (which includes Texas) held that there cannot be a suit against State officials to challenge the constitutionality of a law if all the statute does is authorize private civil suits for money damages. He continues that the only way to challenge the constitutionality of such a law is to be sued under it and then argue as a defense that it is invalid. Prof.Chemerinsky continues it’s been clear since Shelly vs Kramer 1948 that courts cannot act in a manner that violates the Constitution.
The Professor argues that if the Texas law is allowed to stand it will provide the playbook for states to authorize infringement of a myriad of other constitutional rights such that the right of marriage equality for gays and lesbians and could create civil liability for those who possess guns even when there is a right to do so.
This certainly cannot be right according to Justice Sonia Sotomayor in the whole Woman’s Health versus Jackson case, “It cannot be the case that a state can evade federal Judicial scrutiny by outsourcing the enforcement of an unconstitutional law to its citizenry.” PC continues that there must always be the ability to sue some state official to have a state law declared unconstitutional. The professor states this with no authority.
Prof. Chemerinsky claims that the fundamental flaw is that all laws of the state criminal and civil alike must comply with the Constitution. The enforcement mechanism in the law does not lessen its unconstitutionality. Ex Parte Young was a legal fiction aka a rewriting of the 11th amendment, to ensure that federal courts can enjoin unconstitutional laws. The professor argues that the legal fiction concept be extended even further by applying Ex Parte Young to the governor of the state of Texas to permit suits even when the state officials play no formal role in enforcement.
The Supreme Court has dug a hole for itself by ignoring the clear text of the 11th Amendment by having issued the Ex Parte Young decision and the professor argues that the Supreme Court should dig the hole even deeper. This is not only in violation of the clear meaning of the 11th Amendment but is entirely unnecessary. There is a much more honest solution and one that does not rely on legal fictions or a rewriting of the constitution.
That procedure now follows:
The 14th Amendment Section 5, states, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” This means that the “liberty” term in the 14th Amendment, due process clause, “No state shall deprive a person of life, liberty or property without due process,” which was originally intended to mean freedom from incarceration, can be rewritten, by Congress, to reflect its original meaning. Hence, “liberty” could no longer be used to justify the “right” to privacy as used in Griswold v. Connecticut ( 1965). Further the “right” to privacy could no longer be used as a precursor to finding the “right” to abortion in Roe v. Wade (1973). Hence, the right to an abortion would revert to the states from whence it came and each state could decide for itself to what extent it would permit abortions.
The 2nd Amendment, which states, “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed,” can be similarly dealt with without reference to any legal fiction.
That procedure now follows:
By applying the 14th Amendment, section 5, to the term “due process” of the 14th Amendment, due process clause, which again states, “…nor shall any state deprive any person of life, liberty, or property without due process of law…” Congress can again redefine the due process clause to its original meaning, i.e., it will no longer be used to apply the legal fiction of the incorporation clause to apply the bill of rights (first 10 amendments) to the states. This will of course include the 2nd Amendment. Hence the incorporation clause would cease to exist and each state would decide for themselves the extent to which they would “keep and bear arms.”
Hence, there would be no need for the Supreme Court to utilize faux doctrines to achieve their stated goals: they would be guided by “truth, justice and the American way.”
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